CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
AIRLINE PARTICIPATION AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of November 17, 1999, is
by and between xxxxxxxxx.xxx Incorporated, a Delaware corporation with an
address at Five Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Priceline"),
and American Airlines, Inc., a Delaware corporation, whose principal place
of business is set forth in the notice provision of this Agreement
("Airline").
Preliminary Statement
Priceline provides a service that allows consumers to purchase airline
tickets at an offer price determined by the consumer (the "Priceline
Service"). The consumer identifies the departure and return dates for
travel and the price the consumer is willing to pay for the airline
ticket(s). Priceline then determines if it is able to fulfill the
customer's offer and, if it is able to do so, Priceline issues a ticket to
the customer on the applicable carrier.
Airline desires to participate in the Priceline Service and, in
connection therewith, will provide Priceline with unpublished fares subject
to the Restrictions (defined herein) for select origin and destination city
pairs (each, an "O&D") identified by Airline in accordance with the terms
and conditions set forth in this Agreement.
Priceline desires to include Airline as a participating carrier in the
Priceline Service and to have access to such unpublished fares in
accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements set
forth in this Agreement, the parties agree as follows:
I. Ticket Restrictions and Related Matters
1. Airline shall make available to Priceline unpublished fares (the
number an pricing of which determined by Airline in its sole
discretion), for O&Ds (selected by Airline in its sole
discretion) for a minimum period of l year, effective from the
date that Priceline issues the first ticket on such fares. Such
fares may be either, in Airline's sole discretion, "Special Net
Fares" that provide fixed price levels with rules and
availability classes specific to Priceline; or these fares may be
"Netted Retail Fare" that are constructed by applying a specific
discount, if any, to published retail fares. If Netted Retail
Fares are used, Airline agrees to provide reasonable advance
purchase rule waivers so that such fares can be used to issue
Priceline Tickets (defined below). All unpublished fares
provided to Priceline must be issued in accordance with rules and
restrictions provided to Priceline by Airline from time to time.
By way of example only, unpublished fares on certain O&D's may
require specific routings or be flight/day specific. At all times
during the term of this Agreement, Airline will exclusively
control and determine the unpublished fares, the O&Ds, the rules
and restrictions, and the levels of inventory provided to
Priceline by Airline.
2. All tickets issued by Priceline for carriage on Airline (each, a
"Priceline Ticket") shall be subject to the following
restrictions (the "Restrictions"):
(a) Except as otherwise provided in Section IV.4 hereof, all
Priceline Tickets will be nonrefundable, nonendorsable and
nonchangeable;
(b) All travel will be roundtrip with no stopovers or openjaw
travel permitted, with no upgrades permitted and no seat
assignments prior to date of departure;
(c) Frequent Flyer mileage and upgrades will not be permitted;
provided, Airline may offer such benefits at its option;
(d) Priceline customers must agree to (i) make up to one stop or
connection on both their departing and return flights on any
routing, (ii) accept a ticket on any carrier participating
in the Priceline Service (each , a "Participating Carrier"),
and (iii) travel on any flight on the specified date of
travel (x) for domestic U.S. flights, departing during the 6
a.m. 10p.m. time period (or other base period that may be
identified) unless the customer has specified a request to
include flights departing outside those periods, and (y) for
international flights, at any time (i.e., 12:0 l a.m. to
11:59 p.m.);
(e) All Priceline travel reservations and bookings shall be made
without Priceline customers specifying a preferred (or
requested) carrier, flight or time of day travel
preference(s) on the specified date(s) of travel;
(f) All Priceline Tickets require instant ticketing guaranteed
with a major credit card if Priceline is able to provide an
airline ticket within the customer's requested price,
departure and return date parameters;
(g) Priceline Ticket reservations are limited to no more than
eight persons traveling in the same itinerary; and
(h) Except as otherwise provided herein, in any seven (7) day
calendar period, a Priceline customer shall be limited to
making one (1) offer price for airline ticket(s) for a Trip. A
"Trip" is defined as travel between the same airports on the
same dates of travel. A Priceline customer may, within a seven
calendar day period, make an offer for travel in a different
airport pair, on different dates of travel or accept off-peak
travel on nonjet service. Priceline will not sell a ticket to a
Priceline customer in response to a second (or subsequent)
offer for a Trip within a seven calendar day period; provided,
that Priceline may sell a ticket in connection with a one time
second offer if the Priceline customer (i) raises the offer by
a minimum of [**] and (ii) accepts, as part of the second
offer, (x) a travel package which includes a hotel or rental
car offer, or (y) a product or service co- marketed by
Priceline such as a credit card or long distance telephone
service or other co-marketing program
3. Airline may include, in addition to the Restrictions, other fare
rules and conditions for Priceline Tickets issued on Airline.
All Priceline Tickets issued for carriage on Airline shall be
subject to the published conditions of carriage and the fare
rules of Airline, to the extent such conditions and fare rules
are not inconsistent with the Restrictions. Airline will honor
all Priceline Tickets issued for travel on Airline in accordance
with the Restrictions and other rules and conditions established
by Airline for Priceline Tickets.
II. Priceline Ticket Reservations., Bookings, Payment and Fulfillment
1. Airline will file unpublished fares and rules for Priceline
Tickets selected by Airline with the computer reservation system
("CRS") used by Priceline. Additionally, Priceline will
cooperate with Airline to identify and work toward the most
efficient system for the filing of fares for use by Priceline in
the operation of its air travel service with Airline, including
direct settlement through Airline's internal reservation system.
2. Priceline will determine the price at which tickets are sold
based on customer offers received through the Priceline Service.
Priceline shall not advertise prices or fares below Airline's
published or unpublished fares.
3. All unpublished fares made available by Airline for sale through
the Priceline Service shall not be commissionable and shall be
inclusive, where applicable, of the applicable domestic federal
transportation excise tax contained in Section 4261(a) of the
Internal Revenue Code. All such unpublished fares shall be
exclusive of any Ticket Taxes, which, when applicable, must be
added to the fare amount and paid by Priceline to Airline
including the domestic federal segment taxes contained in Section
4261(b) of the Internal Revenue Code. The term "Ticket Taxes" is
defined in Section VII.4. of this Agreement.
4. In all Priceline Ticket transactions, Priceline will be the
merchant of record and will pay and be responsible for all
associated merchant charges and expenses including, without
limitation, credit card fees, and will assume the risk of
nonpayment by the customers and/or the credit card companies. All
Priceline tickets sold on Airline will be settled through Airline
Reporting Corporation ("ARC").
5. All tickets of Airline issued through the Priceline Service will
be issued by Priceline using Agency ARC: 07508546. In collecting
payment for Priceline Tickets, Priceline will act as the agent of
Airline pursuant to Agent's ARC Agent Reporting Agreement with
ARC.
6. Unless otherwise directed by a Priceline customer, all Priceline
Tickets issued on Airline will be issued electronically.
Priceline will encourage its customers to accept electronic
ticketing for all Priceline Ticket requests by imposing an
additional charge for the issuance of paper tickets and
maintaining the issuance of electronic tickets as the default
option on the Priceline Service. After issuance of electronic
tickets, Priceline will promptly forward to the customer a
receipt of purchase and standard conditions.
7. Subject to the provisions of Paragraph II.5 above, all Priceline
paper tickets for carriage on Airline will be issued by Priceline
on standard ARC traffic documents and will be validated with
Airline's validation in accordance with ARC requirements. The
passenger coupon will show "bulk" for the fare amount and will
include all additional collections noted in Paragraph 11.3 above.
The auditor's coupon will show the Airline's unpublished fare
authorized for Priceline.
8. At the request of Airline, Priceline will incorporate into the
Priceline Service, on commercially negotiated terms, a "hot link"
to the designated Internet site of Airline; provided, however,
that Priceline will have a reasonable period of time following
any such request to accomplish any system changes, additions or
enhancements necessary or appropriate for the inclusion of any
such hot link.
III. Priceline Ticket Allocation Methodology
All Participating Carriers will be given the first opportunity to fill
a customer ticket request based on a formula which allocates such
requests in proportion to the aggregate domestic or international
market share (as applicable) of each Participating Carrier for each
O&D requested. If a Participating Carrier fails to respond to a
ticket request on its designated first look, then Priceline will
allocate the request through a second round of preferred looks, which
will be allocated in proportion to the aggregate domestic or
international market shares (as applicable) of all remaining
Participating Carriers for each O&D requested (but excluding the
Participating Carrier that failed to fulfill the ticket request on the
first look). In the event that the Participating Carrier with the
first look allocation is unable to satisfy the offer, and the
Participating Carrier with the second look allocation is unable to
satisfy the offer, Priceline will allocate "subsequent looks" in its
sole discretion to satisfy a customer's offer.
IV. Priceline Customer Service
1. Priceline will provide twenty-four (24) hour customer support
services to all Priceline customers through a toll-free number at
the customer support center designated by Priceline from time to
time. The customer support center will be adequately staffed with
personnel trained to take Priceline Ticket requests by phone and
respond to all customer inquiries for related service and
support. Priceline will use commercially reasonable efforts to
ensure that its customer service representatives provide quality
customer service and support to Priceline customers in a prompt,
reliable and courteous manner.
2. The ticket Restrictions will apply to all tickets issued through
the Priceline Service on Airline. Airline may waive, at its own
cost and expense, one or more of the Restrictions set forth in
Sections I.2 (a)(f) pursuant to a direct arrangement made by
Airline with the applicable customer holding a Priceline Ticket.
On an exception basis where necessary or appropriate to address
an escalating customer service issue of any individual customer,
Priceline may refund the price of a Priceline Ticket applicable
to such customer. In the event that such refunds exceed [**]% of
Priceline Ticket gross ticket sales in any month, Priceline will
implement such actions as are necessary to cause total refunds to
be below [**]% of Priceline Ticket gross ticket sales in the
following month. If in any three month period, total refunds
exceed [**]% of Priceline Ticket gross ticket sales, Priceline will
be responsible for any refunds greater than [**]% of Priceline
Ticket gross ticket sales. At Airlines' request, Priceline shall
provide Airline with a monthly report detailing the number and
amount of refunded Priceline Tickets involving air transportation
services on Airline. Priceline and Airline will jointly develop
additional the guidelines upon which such exception refunds will
be governed.
V. Confidentiality
1. Priceline and Airline will each hold in confidence and, without
the prior written consent of the other, will not reproduce,
distribute, transmit, transfer or disclose, directly or
indirectly, in any form, by any means or for any purpose, any
Confidential Information of the other party. As used herein, the
term "Confidential Information" shall mean this Agreement and its
subject matter, and proprietary information that is provided to
or obtained from one party to the other party including any
information which derives economic value, actual or potential,
from not being generally known to, and not generally
ascertainable by proper means by, other persons, including the
unpublished fares provided by Airline to Priceline pursuant to
this Agreement. The recipient of Confidential Information may
only disclose such information to its employees, attorneys and
accountants on a need-to-know basis and provided each is aware of
this provision and agrees to comply with its terms.
2. The obligations of a recipient party with respect to Confidential
Information shall remain in effect during and after the term of
this Agreement (including any renewals or extensions hereof) and
for a period of five (5) years thereafter, except to the extent
such data:
(a) as a result of a disclosure by the recipient, or its
directors ,officers, employees, agents or advisors;
(b) becomes available to the recipient n a non-confidential
basis from a source other than the disclosing party or its
affiliated companies, provided that such source is not bound
by any confidentiality obligations to the disclosing party
or its affiliated companies (as applicable);
(c) is necessary to comply with applicable law or the order of
other legal process of any court or similar governmental
authority having jurisdiction over the recipient; provided,
that to the extent reasonably practicable, the recipient
shall deliver any such order or legal process to the other
party prior to complying therewith to enable the other party
to seek a protective order or other remedy to protect it's
the disclosure of its confidential information. Both parties
hereto acknowledges that the other party may be required to
file this Agreement with the Securities and Exchange
Commission ("SEC"), as required by federal securities laws,
and that such filing shall not be deemed a violation of the
provisions of this Article V; or
(d) was in the possession of the recipient party prior to the
date of disclosure by the other party, as shown by written
records of the recipient party
3. In the event the recipient becomes legally compelled to disclose
any of such Confidential Information by any governmental court or
body, recipient will provide the disclosing party with prompt
notice so that the disclosing party may seek a protective order
or other appropriate remedy and/or waive compliance (in writing)
with the provisions hereof. In the event that such protective
order or other remedy is not obtained, or the disclosing party
waives in writing compliance with the provisions hereof,
recipient will furnish only that portion of such Confidential
Information which is legally required and will exercise its
reasonable business efforts to obtain appropriate assurance that
confidential treatment will be accorded such Confidential
Information.
4. The recipient of Confidential Information will exercise
reasonable commercial care in protecting the confidentiality of
the other party's Confidential Information.
5. Priceline will not, without Airline's prior written consent,
identify Airline's participation in the Priceline service until a
customer is booked and confirmed for ticketing. Further,
Priceline will not, without Airline's prior written consent, in
any media (including its Internet site) indicate that Airline is
participating or has participated in the Priceline Service except
to indicate that as a consumer proposition, a Priceline customer
must accept a routing on one of the major U.S. full service
airlines or, in the case of international travel, other airline
carriers available through the Priceline Service. Airline will
not disclose its participation in the Priceline Service without
Priceline's prior consent.
6. During the term of this Agreement neither Priceline nor Airline
shall use the other party's trademarks, trade names, service
marks, logos, emblems, symbols or other brand identifiers in
advertising or marketing materials, unless it has obtained the
prior written approval of the other party. The consent required
by this Paragraph V.6. shall extend to the content of the
specific advertising or marketing items as well as the placement
and prominence of the applicable trademark, trade name, service
xxxx, logo, emblem, symbol or other brand identifier of the other
party. Priceline or Airline, as applicable, shall cause the
withholding, discontinuance, recall or cancellation, as
appropriate, of any advertising or promotional material not
approved in writing by the other party, that differs
significantly from that approved by the other party, or that is
put to a use or used in a media not approved by the other party.
7. Priceline will not disclose (including without limitation by
sale) to any third party information specific to a customer's
usage of Airline obtained through the Priceline Service.
8. During the term of the Agreement, and for a period of one year,
thereafter, Airline agrees not to make any remarks to the public
about Priceline or the Priceline Service that is intended to be
negative or disparaging, other than in connection with any
litigation between the parties or otherwise as required by law.
VI. Term of Agreement
1. Subject to the provisions of this Paragraph VI., the term of this
Agreement (herein so called) will commence on the date set forth
on the first page of this Agreement (the "Commencement Date") and
will continue until terminated pursuant to this Paragraph VI.
Notwithstanding the foregoing, Priceline or Airline may terminate
this Agreement at any time after one (1) year following the
Commencement Date, with or without cause, on thirty (30) days'
prior written notice to the other party.
2. In the event either party is in material breach of its
obligations under this Agreement, the non-breaching party may
terminate this Agreement on thirty (30) days written notice to
the breaching party, provided the breaching party has failed to
cure such breach within such thirty (30) day period.
3. Either party may terminate this Agreement upon written notice to
the other party in the event that bankruptcy or insolvency
proceedings are filed by or commenced against the other party.
4. The obligations of the parties under Paragraphs V., VII. and IX.
of this Agreement shall indefinitely (except as otherwise limited
to a certain term therein) survive the termination of this
Agreement.
5. In the event of written notice of termination of this Agreement
in accordance with the terms of this Paragraph VI, all Priceline
Tickets issued on Airline prior to the effective date of
termination specified in such notice will be honored by Airline
under the terms of this Agreement.
VII. Representations and Warranties and Indemnification
1. Each party hereby represents and warrants to the other as
follows:
(a) Such party is duly organized and validly existing under the
laws of the state of its incorporation and has full
corporate power and authority to enter into this Agreement
and to carry out the provisions hereof.
(b) Such party is duly authorized to execute and deliver this
Agreement and to perform its obligations hereunder.
(c) This Agreement is a legal and valid obligation binding upon
it and enforceable with its terms. The execution, delivery
and performance of this Agreement by such party does not
conflict with any agreement, instrument or understanding,
oral or written, to which it is a party or by which it may
be bound, nor violate any law or regulation of any court,
governmental body or administrative or other agency having
jurisdiction over it.
2. Priceline represents and warrants that it owns or has the legal
right to use the systems, processes and technology used by
Priceline to provide the Priceline Services and they do not, to
the best of its knowledge, infringe any patent of any third
party.
3. Priceline will indemnify, defend and hold harmless Airline, its
officers, directors, employees and agents, from and against all
damages, losses and causes of action (including reasonable
attorneys' fees), including, without limitation, damage to
property or bodily injury, on an after-tax basis, to the extent
caused by or related to (i) Priceline's breach of this Agreement
or the ARC Agent Reporting Agreement, (ii) any inaccuracy in any
of Priceline's representations or warranties set forth in
Paragraphs VII.1. and VII.2. above, (iii) by the negligence or
willful acts of Priceline or any of its employees or agents, or
(iv) any actual or alleged claim that all or any part of the
systems, processes or technology used by Priceline to provide the
Priceline Services infringes, directly or indirectly, any patent
or copyright or misappropriates any trade secret.
4. Priceline shall be solely responsible for collecting and
remitting Ticket Taxes, if any, payable on amounts collected by
Priceline on tickets issued for travel by Airline in excess of
amounts paid by Priceline to Airline in respect to such tickets.
The term "Ticket Taxes" includes: (i) any applicable taxes
pursuant to Section 4261 of the Internal Revenue Code paid along
with all penalties and interest thereon and (ii) any applicable
passenger facility charges, stamp taxes, excise taxes, (including
segment fees), value added taxes (in the nature of a sales or use
tax), gross receipts taxes (in the nature of a sales or use tax),
U.S. Department of Agriculture APHIS user fees, U.S. Customs user
fees, U.S. Immigration and Naturalization Service user fees,
security charges and other taxes and user fees or charges imposed
by any domestic or foreign governmental entity on a per passenger
basis or as a percentage of the fare paid and all penalties and
interest thereon. Priceline will indemnify, defend and hold
harmless Airline and its affiliates, and any of their officers,
directors, employees, and agents, from and against all
assessments or payments for tax, interest and penalties for
Ticket Taxes on any amounts attributed to the excess of the
amounts paid or payable by Priceline to Airline for tickets
purchased under this Agreement. This indemnification
specifically includes, but is not limited to, assessments or
payments under Sections 4261, 4263, 6651, 6652, 6656, 6662, 6672,
or 6861 of the Internal Revenue Code, and any successor
provisions. Priceline further agrees, as part of this
indemnification, to reimburse Airline and its affiliates, and any
of their officers, directors, employees, and agents, for any
reasonable out of pocket expenses, including attorneys' fees and
expenses Airline may have incurred in connection with any such
assessment or payment raised by any authority in connection with
such Priceline Tickets. The obligations of this Section are
supplementary of those set forth in Section VII. 3. and shall
survive the termination of this Agreement.
5. Priceline hereby acknowledges that Airline's sales documentation
for Priceline Tickets sold to Priceline is sufficient to meet the
requirements of Section 7275 of the Internal Revenue Code and
Priceline is responsible for Section 7275 obligations regarding
ticketing and advertising of Priceline Tickets.
6. Airline will indemnify, defend and hold harmless Priceline and
its officers, directors, employees and agents from and against
all damages, losses and causes of action (including reasonable
attorneys' fees), including, without limitation, damage to
property or bodily injury, on an after-tax basis, to the extent
caused by (i) Airline's breach of this Agreement, (ii) any
inaccuracy in any of Airline's representations or warranties set
forth in Paragraph VII.1. above, or (iii) by the negligence or
willful acts of Airline or any of its employees or agents.
VIII. Reporting and Audit Rights
1. Priceline will provide monthly (or at least as frequently as to
the other Participating Carriers) electronic reports in a format
reasonably agreed to by Priceline and Airline summarizing (i)
information concerning each ticket issued by Priceline on
Airline; (ii) aggregate information (i.e. non airline specific)
for all tickets issued by Priceline I in each O&D that Airline
participates (including, without limitation, aggregate
information on the number of passengers ticketed per O&D by
travel date); (iii) aggregate information for all Priceline
offers not ticketed in each O&D that Airline participates; (iv)
information about the market share in each O&D in which Airline
participates; and (v) any other information reasonably requested
by Airline.
2. Priceline will provide to Airline an annual statement by
Priceline's independent accounting firm or other qualified third-
party concerning Priceline's compliance with the Priceline Ticket
Allocation Methodology specified in Paragraph III. and all
reporting obligations required by this Agreement.
3. Airline may, upon reasonable notice to Priceline and during
normal business hours, audit the financial books and records of
Priceline and the information specified in Paragraphs VIII.1. and
2. Any such audit shall be at the sole cost and expense of
Airline, except that the costs of the audit will be at the
expense of Priceline if it reveals that Priceline has not
materially complied with the terms of this Agreement.
IX. General Provisions
1. Any notice required or permitted hereunder shall be deemed
sufficient if given in writing and delivered personally, by
facsimile transmission, by reputable overnight courier service or
United States mail, postage prepaid return receipt requested, to
the addresses shown below or to such other addresses as are
specified by similar notice, and shall be deemed received upon
personal delivery, upon confirmed facsimile receipt, two (2) days
following deposit with such courier service, or three (3) days
from deposit in the United States mails, in each case as herein
provided:
If to Priceline:
Xxxxxxxxx.xxx Incorporated
Five Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Chief Financial Officer
Phone: (000 ) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxxxxx.xxx Incorporated
Five Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Executive Vice President, Travel
Phone: (000) 0000000
Fax: (000) 0000000
If to Airline:
American Airlines, Inc.
0000 Xxxx Xxxxxx Xxxxxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Vice President & General Sales Manager
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to
American Airlines, Inc.
0000 Xxxx Xxxxxx Xxxxxxxxx
Xxxx Xxxxx, XX 00000
Attention: Corporate Secretary
Phone: (000) 0000000
Fax: (000) 0000000
A party may change its address and the name of its designated
recipient of copies of notices for purposes of this Agreement by
giving the other pates written notice of the new name and the
address, phone and facsimile number of its designated recipient
in accordance with this Paragraph IX.1.
2. The relationship by and among Airline, Priceline and as set forth
in this Agreement shall be nonexclusive. As such, Airline may
participate in other programs, similar or dissimilar, to the
Priceline Service.
3. No waiver or breach of any of the provisions of this Agreement
shall be construed as a waiver of any succeeding breach of the
same or any other provision.
4. This Agreement and the Attachments hereto supersede and replace
all previous understandings or agreements, oral or written, with
respect to the subject matter. The captions in this Agreement
are for convenience only and do not alter any terms of this
Agreement.
5. This Agreement may be amended or modified only by a written
amendment executed by the parties.
6. The formation, construction, performance and validity of this
Agreement shall be governed by the internal laws of the State of
New York. Each party agrees that any civil suit or action brought
against it as a result of any of its obligations under this
Agreement may be brought against it either in the state or
federal courts of the principal place of business of either
party, and each party hereby irrevocably submits to the
jurisdiction of such courts and irrevocably waives, to fullest
extent permitted by law, any objections that it may now or
hereafter have to the laying of the venue of such civil suit or
action and any claim that such civil suit or action has been
brought in an inconvenient forum, and each party further agrees
that final judgment in any such civil suit or action shall be
conclusive and binding upon it and shall be enforceable against
it by suit upon such judgment in any court of competent
jurisdiction.
7. No party will in any manner or by any device, either directly or
indirectly, act in violation of any applicable law, governmental
order or regulation. Priceline shall comply at all times with
the provisions of Airline's tariffs (except where such tariffs
are specifically amended by Airline under the terms of this
Agreement) and the terms of the Airline Reporting Corporation
(ARC) Agent Reporting Agreement and the American Airlines
Addendum thereto.
8. Priceline agrees to notify Airline promptly, in writing, in the
event there is a change of control in the ownership of Priceline.
For purposes of this Agreement, a "change of control" with
respect to a party means (i) the acquisition by any other person
or group (within the meaning of Section 13(d)(3) of the
Securities Exchange Act (except an employee group of such party,
any of its subsidiaries or a company of such party)), of the
beneficial ownership securities representing 20% or more of the
combined voting power of the securities entitled to vote
generally in the election of the board of directors of such
party, or (ii) the sale, mortgage, lease or other transfer of
assets or earning power constituting more than 50% of the assets
or earning power of such party (other than ordinary course
financing); PROVIDED that in no event shall a change of control
be defined to include (i) the formation by a party of a holding
company or (ii) an intra-corporate transaction with a company
under common control with a party. Upon the occurrence of a
change of control of a party, the other party may terminate this
Agreement on thirty (30) days prior written notice.
9. No party hereto shall assign or transfer or permit the assignment
or transfer of this Agreement without the prior written consent
of the other party.
10. This Agreement shall not be deemed to create any partnership or
joint venture between Airline and Priceline, nor to create any
rights in favor of any person or entity other than the parties
hereto. This Agreement is for the sole benefit of the parties
and nothing herein expressed or implied shall give or be
construed to give any other person any legal or equitable rights
hereunder.
11. NO PARTY WILL BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES, INCLUDING LOST REVENUES, LOST PROFITS, OR LOST
PROSPECTIVE ECONOMIC ADVANTAGE, ARISING FROM THIS AGREEMENT OR
ANY BREACH HEREOF.
12. In the event that either party hereto is prevented from
fulfilling any of its obligations under this Agreement for a
period not exceeding one hundred twenty (120) consecutive days
for a reason beyond its control, including, but not limited to,
strikes, lockouts, work stoppages or other labor disputes, riots,
civil commotions, acts of God, fire, flood and other weather-
related reasons, governmental action or directive (a "Force
Majeure Event "), such party shall not, by reason of being so
prevented, be in breach of this Agreement and such condition
shall not be cause of termination by the other party. If a Force
Majeure Event continues for a period in excess of one hundred
twenty (120) consecutive days as to one party which prevents that
party from fulfilling in any material way its obligations under
this Agreement to the party, the other party shall have the right
to terminate this Agreement upon thirty (30) days' advance
written notice to the other party.
13. It is expressly acknowledged that this Agreement is not
conditioned in any way upon Priceline's choice of, or use of,
any particular computer reservation system.
14. Unless otherwise expressly provided, the remedies provided by
this Agreement are not intended to be exclusive. Each shall be
cumulative and shall be in addition to all other remedies
available to either party under this Agreement, at law or in
equity.
15. This Agreement may be executed in counterparts, each of which
shall be deemed an original, and together, shall constitute one
and the same instrument. Execution may be effected by delivery
of facsimiles of signature pages (and the shall follow such
delivery by prompt delivery of originals of such pages).
IN WITNESS WHEREOF., the parties have executed and delivered this
Agreement on the date indicated above.
XXXXXXXXX.XXX INCORPORATED AMERICAN AIRLINES, INC.
By:______________________ By:________________________
Name: Xxxxxxx Xxxxx Name:
Title: Executive Vice President, Title:
Travel
[**]=Confidential Treatment requested for redacted portion
